Peter Njoroge Njung'e v Virginia Wairimu (sued as the legal representative of the Estate of John Ngugi Njoroge, deceased) & Trisands Investment Limited

suit land) exceeded its pecuniary jurisdiction, held that it had no jurisdiction to entertain the matter, and "downed its tools" without making any further order. 2. The appellant, Peter Njoroge Njung'e, was the plaintiff in the trial court. He contends that the trial court was functus officio because a consent judgment had been recorded, and that the question of jurisdiction had already been determined in an earlier ruling dated 3rd December 2018. 3. The original 1st Respondent, John Ngugi Njoroge, died during the pendency of this appeal. He was substituted by Virginia Wairimu as the legal representative of his estate. By an order made on 22 nd October 2024, service upon her was effected by advertisement in the Daily Nation of 31st January 2025, as deponed in the affidavit of service of Charles Njau Ngigi sworn on 31st January 2025. I am satisfied that she was duly served. She did not file submissions or otherwise participate in the appeal. Background 4. The appellant filed the suit by a "fast track" plaint dated 25 th August 2014. He pleaded that the defendant was registered as the proprietor of land parcel Ndeiya/Ndeiya/1006, measuring about six acres, under a customary trust for the family; that the defendant subdivided it into three portions, one of which is the suit land, measuring about 1.620 hectares; and that the defendant had excluded the appellant and his THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 2

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siblings, the heirs of their late father. His substantive prayer was for a mandatory injunction compelling the defendant to transfer two acres of the suit land to him. 5. By a consent dated 13th April 2017 and filed on 20th April 2017, the parties agreed that "this matter be marked as withdrawn" on agreed terms. The trial court adopted the consent, and a formal order was issued on 23rd August 2017. Its key terms were that: (i) the suit land was family land, registered in the defendant's name on his own behalf and on behalf of the family of his late brother, Lawrence Njung'e Njoroge alias John Kimani Njoroge; (ii) it would be sold as a single parcel to a buyer agreeable to both parties; (iii) failing agreement, it would be divided equally between the appellant (for himself and his siblings) and the defendant; (iv) the appellant would remove cautions on parcels Ndeiya/Ndeiya/2223 and 2224; (v) the transaction would be conducted exclusively by the appellant's advocates; and (vi) each party would bear its own costs. 6. According to the appellant's affidavits as recited in the trial court's rulings, the suit was filed on 26th August 2014, and interim orders barring any dealings with the suit land were issued on 27 th August 2014 and 17th July 2015. He deponed that the Land Registrar, Kiambu, was served with a court order dated 23rd June 2015, and that he had registered a restriction on the title which was removed without his involvement. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 3

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7. By a Notice of Motion dated 18th December 2017, the appellant sought to enforce the consent. He asked that the Executive Officer of the court execute the documents needed to subdivide the suit land and transfer his portion, that the OCS Tigoni Police Station oversee the subdivision and that the defendant produce the title deed or the Land Registrar advertise it as lost. He deponed that the defendant was uncooperative and had refused to hand over the title. In an unopposed ruling delivered on 1st March 2018, the trial court allowed the prayer for execution of documents, with the variation that one half of the parcel be transferred to the appellant and his siblings, in accordance with clause 3 of the consent. It ordered the defendant to produce the title deed, declined the prayer for police supervision as premature, and ordered costs in the cause. 8. On 26th February 2018, three days before that ruling was delivered, the defendant transferred the suit land to the 2 nd respondent, and a title was issued in its name. The 2nd respondent says it bought the land from the defendant. 9. By a Notice of Motion dated 3rd April 2018, filed in the same concluded suit, the appellant sought orders nullifying the transfer to the 2 nd respondent, declaring its title null and void, and directing the Land Registrar to cancel that title and restore the land to the defendant's name. On 16th May 2018, the trial court, on its own motion, joined the 2 nd respondent as an interested party and directed that it be served. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 4

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10. The application of 3rd April 2018 sought, among other things, to nullify the transfer of the suit land to the 2 nd respondent, a declaration that the title issued to it was null and void, and the cancellation of that title and the issue of a fresh title in the defendant's name. Its grounds were that interim orders barred dealings with the land; that the Land Registrar had been served with them but illegally registered the transfer; and that under the consent no transaction could be done on the land without the appellant's involvement. It came up for inter partes hearing on 31 st May 2018, when the appellant's counsel was heard in the absence of the defendant and of the 2nd respondent, both of whom the formal order records as "duly served". 11. In a ruling delivered on 6th July 2018, the learned magistrate noted that neither the defendant nor the 2nd respondent had filed a response, so that the application stood unopposed and its allegations unchallenged. She found that the sale to the 2 nd respondent was "irregular and illegal" because it was not done in accordance with the order of the court based on the consent. She allowed prayers 3 and 4, and awarded the appellant costs. She declined prayer 5, which from the ruling and the formal order appears to be the prayer for cancellation of the title and the issue of a fresh one, stating that she had no jurisdiction to grant it. The formal order, signed on 31st July 2018, nullified the transfer of the suit land from the defendant to the 2nd respondent and declared the title issued to the 2nd respondent null and void. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 5

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12. By a Notice of Motion dated 24th July 2018 and filed on 27th July 2018, brought under Order 51 rule 15 of the Civil Procedure Rules and sections 1A and 3A of the Civil Procedure Act, the 2nd respondent sought to discharge, vary or set aside the orders of 6th July 2018, and leave to file its response to the application of 3rd April 2018 so that it could be heard on its merits. 13. It was supported by the affidavit of its director, Joseph Muongi Njonge, sworn on 24th July 2018. He deponed that the 2nd respondent obtained title to the suit land on 26th February 2018, annexing an official search dated 27th March 2018; that it is a registered company with a known physical and postal address; that it was never personally served with summons or with the application of 3rd April 2018, but was said to have been served by substituted service through an advertisement in a local newspaper; and that it was a bona fide purchaser for value that would suffer great loss if the orders were executed. A further application, under a certificate of urgency dated 7th August 2018, stated that the appellant had extracted a decree and was about to commence cancellation of the 2nd respondent's title. 14. Before those applications were determined, the 2 nd respondent filed a Notice of Preliminary Objection dated 19 th October 2018, stating simply that the court lacked pecuniary jurisdiction. The appellant opposed it by Grounds of Opposition dated 2nd November 2018, contending among THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 6

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other things that the court was functus officio. By a list of documents dated 7th November 2018, the 2nd respondent then filed a valuation report dated 2nd November 2018 for the suit land. 15. In a ruling delivered on 3rd December 2018, the trial court dismissed the objection with costs. The learned magistrate held that the value of the land was a question of fact that could be disputed, so it could not found a preliminary objection under the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 16. She noted that the suit was filed in 2014 and the valuation was done in 2018, about four years later, and that "the relevant valuation report which would determine whether or not this court ought to have entertained this suit ought to have been one done in 2014 when the suit was filed." She described the issue as arguable and said that the interested party should have raised it by other means that would allow probity. She also observed that the issue had been raised when a judgment was already in place, so that "the horse has already bolted so to speak", and that the objection had been brought rather late in the day. 17. After the objection was dismissed, the 2nd respondent filed a Notice of Motion dated 8th December 2018, received in the registry on 17 th December 2018, under Order 51 rule 15 of the Civil Procedure Rules and sections 1A and 3A of the Civil Procedure Act. It sought orders that (1) THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 7

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the entire suit be declared a nullity and any proceedings or orders in it be declared void for want of jurisdiction; and (2) the ex parte orders of 6th July 2018 and all consequential orders be discharged, varied or set aside. Its grounds were that the subject matter of the suit, "being Land Parcel Number Ndeiya/Ndeiya/2222", was valued at Kshs. 18,000,000, beyond the court's pecuniary jurisdiction, so that the entire suit and every proceeding founded on it were void. The supporting affidavit of Joseph Muongi Njonge, sworn on 8th December 2018, annexed the same valuation report. 18. The appellant did not file a replying affidavit. He filed a Notice of Preliminary Objection dated 30th January 2019, received on 31 st January 2019, contending that the court was functus officio because there was a judgment on record and because the issues had been dealt with in the ruling of 3rd December 2018. The defendant did not oppose the application. 19. In the impugned ruling of 25 th April 2019, the learned magistrate noted that the valuation report dated 2nd November 2018 put the suit land at Kshs. 18,000,000, above the Kshs. 15,000,000 limit under section 7 of the Magistrates' Courts Act. She found that this had not been challenged: the appellant's preliminary objection said nothing about the value of the subject matter and raised only the functus officio ground and the lateness of the application. The defendant did not object to the application. She held that "as things stand, this court has no jurisdiction to entertain this matter." THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 8

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20. She then asked whether, having so found, the court could issue the further orders sought, namely setting aside its previous orders and declaring the entire suit a nullity. Relying on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, she held that a court downs its tools the moment it holds the opinion that it is without jurisdiction, and "consequently I down my tool so to speak." She made no order on either prayer of the application. That ruling provoked this appeal. The appeal 21. By the Amended Memorandum of Appeal dated 22 nd February 2023, the appellant advanced eight grounds. In summary, he faults the learned magistrate for: (1) and (2) failing to find that the court was functus officio, both because of the judgment on record and because of the ruling of 3rd December 2018; (3) issuing two contradictory rulings on jurisdiction; (4) admitting evidence long after the consent judgment without any review application; (5) disregarding his preliminary objection and submissions; (6) failing to appreciate the record; (7) failing to find that the 2nd respondent's application was an abuse of process because it was filed after the suit had been concluded; and (8) considering extraneous matters. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 9

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22. He prays that the appeal be allowed; that the ruling of 25 th April 2019 be vacated and replaced with an order that the trial court became functus officio upon adopting the consent; that the ruling of 3rd December 2018 could only be reviewed or appealed; that the consent order issued on 23rd August 2017 be declared valid; and for costs. 23. The appeal was canvassed by way of written submissions. Appellant's submissions 24. In submissions dated 8th July 2024, the appellant framed four issues: whether there was a valid judgment before the trial court; whether the court was right to join an interested party after judgment; whether it was right to issue two rulings on jurisdiction; and whether it was functus officio when it delivered the impugned ruling. His submissions also add a ground, not in the amended memorandum, faulting the court for introducing the 2nd respondent as an interested party after the conclusion of the trial. 25. He submitted that the consent judgment had never been set aside, and that a consent can only be set aside on grounds that would justify setting aside a contract (Flora N. Wasike v Destimo Wamboko [1988] eKLR; SNI v AOF [2020] eKLR). He relied heavily on John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR, where the High Court held that a trial court that had entered judgment was functus officio and erred in striking out the suit for want of jurisdiction. He relied on Telkom THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 10

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Kenya Ltd v John Ochanda [2014] eKLR and Raila Odinga & 2 others v IEBC & 3 others [2013] eKLR on the doctrine. 26. He argued that the rulings of 3 rd December 2018 and 25 th April 2019 both concerned pecuniary jurisdiction, so that the court sat on appeal over its own decision (Charles Mwangi Gitundu v Charles Wanjohi Wathuku [2021] eKLR). Citing Mayfair Holdings Ltd v Municipal Council of Kisumu [2020] eKLR, he argued that a party can only be joined while a suit is pending, not after it has been concluded. 2nd respondent's submissions 27. In submissions dated 18th October 2024, the 2nd respondent urged that the appeal be dismissed. On joinder, it submitted that the order of 16th May 2018 was made by the court on its own motion following the appellant's own application, was never appealed or set aside, and is settled by judicial decision (Mawathe Julius Musili v IEBC & another, SC Petition No. 16 of 2018; Alba Petroleum Limited v Total Marketing Kenya Limited [2019] eKLR). 28. On res judicata, it submitted that the ruling of 3rd December 2018 dismissed the objection on a technicality, without determining whether the court had pecuniary jurisdiction, so the issue was never heard and finally decided (Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Ltd [2005] KLR 97; Michael Bett Siror v Jackson Koech THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 11

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[2019] eKLR; MWK v AMW [2016] eKLR; Cosmas Mrombo Moka v Cooperative Bank of Kenya Ltd & another [2018] eKLR). 29. On functus officio, it submitted that jurisdiction may be raised at any stage, even after judgment and on appeal (Lillian S; Jamal Salim v Yusuf Abdulahi Abdi & another [2018] eKLR; Sinopec International Petroleum Service Corporation v PPARB & others, Civil Appeal No. E012 of 2024; NSSF Board of Trustees v Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)). Citing Peterson Ndung'u & others v Kenya Power and Lighting Company, Civil Appeal No. 208 of 2015, it argued that a court is functus officio only where its decision was made in accordance with the law. It added that it raised the issue at the earliest opportunity, being a late entrant to the proceedings; that the value of Kshs. 18,000,000 was never controverted; and that under sections 7(1) and 9(a) of the Magistrates' Courts Act, the limit for a Senior Principal Magistrate was Kshs. 15,000,000. Analysis and determination 30. This is a first appeal. The court is obliged to re-evaluate the record and reach its own conclusions, bearing in mind that it did not see the witnesses (Selle v Associated Motor Boat Co. [1968] EA 123). Here the impugned decision was made on affidavit evidence and points of law, so this court is as well placed as the trial court to evaluate it. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 12

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31. Having considered the record, the grounds of appeal and the submissions, I find that the appeal turns on four issues: (a) whether the ruling of 3rd December 2018 rendered the question of pecuniary jurisdiction res judicata; (b) whether the trial court was functus officio when it delivered the ruling of 25th April 2019; (c) whether the appellant can, in this appeal, challenge the joinder of the 2nd respondent; and (d) whether the trial court erred in finding that it lacked pecuniary jurisdiction, and what orders are appropriate. (a) Res judicata and the "two contradictory rulings" (grounds 2, 3 and 5) 32. Section 7 of the Civil Procedure Act bars a court from trying an issue that was directly and substantially in issue in a former proceeding and was "heard and finally decided". The doctrine applies to successive applications within the same suit as well as to separate suits. Its essence is that the issue must have been determined on its merits. 33. The ruling of 3rd December 2018 did not decide whether the trial court had pecuniary jurisdiction. It dismissed the Preliminary Objection of 19 th October 2018 because the objection depended on a contested fact, the THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 13

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value of the land, and so was not a pure point of law. The court indicated that the issue ought to be raised by a procedure that would allow evidence. That is exactly what the 2 nd respondent then did, by way of a Notice of Motion supported by an affidavit and a valuation report. 34. A decision that a point cannot be taken by way of preliminary objection is a decision on procedure, not on the merits. As the Court of Appeal held in Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Ltd [2005] KLR 97, a matter disposed of on a technical or preliminary ground has not been heard and finally decided. The learned magistrate's remarks about the relevant date of valuation and the existence of a judgment were made in explaining why the issue was arguable; they did not finally determine it. The ruling of 3 rd December 2018 therefore did not bar the later application, and Charles Mwangi Gitundu v Charles Wanjohi Wathuku is distinguishable. In any event, jurisdiction is not a matter that a court can be estopped from examining. Grounds 2, 3 and 5, as framed, fail. The observations in that ruling about the date of valuation are addressed under issue (d). (b) Whether the trial court was functus officio (grounds 1, 4 and 7) 35. The doctrine of functus officio prevents a court that has rendered a final decision from re-opening that decision on its merits (Telkom Kenya Ltd v John Ochanda [2014] eKLR; Raila Odinga & 2 others v IEBC & 3 others [2013] eKLR). It does not prevent a court from dealing with THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 14

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matters arising after judgment, such as execution, enforcement or other post-judgment applications. The trial court properly did so on 1 st March 2018, when it made orders enforcing the consent between the parties to it. 36. The record shows that it was the appellant, not the 2 nd respondent, who re-opened the proceedings after the consent judgment. By his application of 3rd April 2018, he did not merely seek to enforce the consent against the defendant. He sought fresh substantive relief against a stranger to the consent: the nullification of a completed transfer and the cancellation of the 2nd respondent's title. The consent of 2017 did not bind the 2nd respondent, which was not a party to it, and made no order concerning any title held by it. The trial court therefore exercised a fresh adjudicative jurisdiction over the 2 nd respondent's title when it made the orders of 6th July 2018. 37. Having invited the trial court to exercise that jurisdiction, the appellant cannot turn around and say that the court was functus officio when the party affected challenged whether the jurisdiction existed. If the trial court was truly functus officio after the consent, the orders of 6th July 2018 obtained by the appellant would themselves have been made without authority. A litigant cannot approbate and reprobate in this way. The 2nd respondent's application was not an attempt to re-open the consent between the appellant and the defendant; it was a challenge THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 15

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to the court's power to make the post-judgment orders against the 2 nd respondent's title. It was not an abuse of process. 38. Further, it is settled that jurisdiction is everything; without it a court has no power to make one more step (Lillian S). Jurisdiction flows from the Constitution or statute and cannot be conferred by consent, by acquiescence or by the ingenuity of counsel (Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR). It may be raised at any stage of proceedings, including after judgment and for the first time on appeal (Jamal Salim v Yusuf Abdulahi Abdi & another [2018] eKLR; NSSF Board of Trustees v Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)). The 2nd respondent was joined on 16th May 2018 and first appeared to contest the orders of 6th July 2018. It raised jurisdiction at the earliest practicable opportunity. 39. I have considered John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR. It is a decision of a court of equal status and is persuasive, not binding. It is also distinguishable. There, the judgment debtor, a party to the original suit, used a post-judgment application to strike out the very suit in which judgment had been entered against it. Here, the challenge came from a third party against post-judgment orders that the appellant himself sought and obtained against its title. 40. As for ground 4, the affidavit and valuation report were filed in support of an application properly before the court. No review of the THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 16

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consent was required to receive them, because the consent was not what was under challenge. I find no merit in grounds 1, 4 and 7. (c) Joinder of the 2nd respondent 41. The complaint about joinder is not among the grounds in the Amended Memorandum of Appeal. It appears for the first time in the submissions. Parties are bound by their pleadings, and submissions cannot introduce a new ground of appeal without leave under Order 42 rule 4 of the Civil Procedure Rules. In addition, the order of 16 th May 2018 is not the decision appealed from; it was never appealed or set aside (Mawathe Julius Musili v IEBC & another, SC Petition No. 16 of 2018). 42. Even if the complaint were properly before me, it would not avail the appellant. The joinder was ordered precisely because the appellant's own application sought to cancel the 2nd respondent's title. The rules of natural justice required that it be heard before any order affecting its title could be made. The appellant cannot fault the joinder while seeking to keep the orders that followed from it. This complaint fails. (d) Pecuniary jurisdiction and the appropriate orders (grounds 6 and 8) 43. Section 7(1)(b) of the Magistrates' Courts Act, 2015 limits the civil jurisdiction of a court presided over by a Senior Principal Magistrate to THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 17

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claims not exceeding Kshs. 15,000,000. Section 9(a) applies those limits to land and environment disputes heard by magistrates under section 26 of the Environment and Land Court Act. The trial court was presided over by a Senior Principal Magistrate. 44. Pecuniary jurisdiction is tested against the subject matter of the claim before the court, at the time the claim is brought. Ordinarily that claim is the one in the plaint. Here it was not. The claim that brought the 2 nd respondent into these proceedings was the appellant's application of 3 rd April 2018, filed almost a year after the suit had been compromised. As I have found under issue (b), that application invoked a fresh adjudicative jurisdiction against a new party. It sought to nullify the transfer of the whole of land parcel Ndeiya/Ndeiya/2222 and to declare the 2 nd respondent's title to the whole parcel void. Its subject matter was therefore the entire parcel, and its value fell to be tested in 2018, when the claim was made. 45. The 2nd respondent was not a party to the suit when it was filed in 2014, or when the consent was recorded in 2017. It had no occasion to question the court's jurisdiction until it was joined on 16 th May 2018 and found that its title had been declared void in its absence. It was the 2 nd respondent that first placed evidence of value before the trial court: a valuation report dated 2nd November 2018, which valued the suit land at Kshs. 18,000,000. The appellant filed no replying affidavit, did not challenge the report or its author, and offered no valuation of his own. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 18

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The evidence therefore stood uncontroverted, as the learned magistrate found. 46. The appellant cannot avoid that evidence by pointing to the two acres claimed in the plaint, or to the half share under the consent. The orders he sought and obtained on 6th July 2018 were not confined to his share; they nullified the transfer of, and declared void the title to, the entire parcel. Having invited the court to adjudicate on the whole title, he must accept that the court's jurisdiction is measured by the value of the whole title. 47. Nor does the observation in the ruling of 3 rd December 2018 that the relevant valuation would be one done in 2014 assist the appellant. That observation was made in dismissing a preliminary objection, and it concerned whether the original suit ought to have been entertained. It did not determine the question, and it does not address the court's jurisdiction to entertain an application brought in 2018 against the title of a third party. I also note that, in the ruling of 6 th July 2018, the learned magistrate herself declined to order cancellation of the 2nd respondent's title for want of jurisdiction, even as she declared that title void. The trial court was right to find that it lacked jurisdiction, and it did not consider extraneous matters. Grounds 6 and 8 fail. 48. It follows that the orders of 6th July 2018, and the formal order signed on 31st July 2018, were made without jurisdiction. An order made without THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 19

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jurisdiction is a nullity; it is void from the outset and confers no rights (Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169). 49. Having found that it lacked jurisdiction, the trial court declined to make any further order, including on the 2 nd respondent's prayer to set aside the orders of 6th July 2018. With respect, Lillian S does not go that far. It bars a court without jurisdiction from taking any further step on the merits of the dispute. It does not prevent the court from making the orders that flow directly from its finding of no jurisdiction, such as recording that orders it made without jurisdiction are of no effect. The result of the impugned ruling is that orders declaring the 2 nd respondent's title void remain on the record, although the court that made them has found that it had no power to make them. That position cannot be left to stand. 50. The 2nd respondent did not file a cross-appeal. However, under section 78 of the Civil Procedure Act this court has the same powers as the trial court and may make any order that ought to have been made. Since the orders of 6th July 2018 are a nullity in any event, a declaration to that effect does not enlarge the 2nd respondent's rights; it records the legal consequence of the finding that I have upheld. I will make that declaration for the avoidance of doubt. 51. The appellant also asks this court to declare the consent order issued on 23rd August 2017 valid. That prayer has no foundation in the impugned ruling. The learned magistrate did not declare the suit a THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 20

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nullity and did not set aside the consent; she expressly declined to make any further order. The consent therefore stands as it did before the ruling, and there is no decision on it for this court to reverse. A declaration would also be inappropriate on this record: there is no evidence of the value of the two acres claimed when the suit was filed in 2014, and the estate of the defendant, the only other party to the consent, did not participate in this appeal. Nothing in this judgment decides the validity of the consent as between the parties to it. Equally, nothing in it prevents the appellant from pursuing such rights as he may have under the consent against the estate of the defendant, or from challenging the 2nd respondent's title in a substantive suit before a court of competent jurisdiction, in which the 2nd respondent can be fully heard. 52. The upshot is that the appeal lacks merit. I make the following orders: (a) The appeal is dismissed; (b) The ruling of Hon. E. Olwande, Senior Principal Magistrate, delivered on 25th April 2019 in Limuru SPMCC No. 235 of 2014 is upheld. (c) Under section 78 of the Civil Procedure Act, and for the avoidance of doubt, it is declared that the orders made on 6 th July 2018, and the formal order signed on 31 st July 2018, nullifying the transfer of land parcel Ndeiya/Ndeiya/2222 to the 2nd respondent and declaring its title null and void, were made without jurisdiction and are null and void. THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 21

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(d) The prayer for a declaration that the consent order issued on 23rd August 2017 is valid is declined. (e) The appellant shall bear the 2nd respondent's costs of this appeal (f) There shall be no order as to costs in respect of the 1 st respondent, who did not participate in the appeal. It is so ordered. Dated, signed and delivered virtually at Malindi this 7 th day of October 2026. …………………… J. M ONYANGO JUDGE In the presence of: 1. Mr. Masinde for the 2nd Respondent 2. Ms Ngige Mbiri for Mr. Ngige for the Appellant Court Assistant: Happy THIKA ELC APPEAL NO. E038 OF 2021 (JUDGMENT) Page 22

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